CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 9 juillet 2009

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RUSSIA   (Application no. 24325/03)           JUDGMENT     STRASBOURG   9 July 2009   FINAL   09/10/2009   This judgment may be subject to editorial revision. In the case of Generalov v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Christos Rozakis, President,   Nina Vajić,   Anatoly Kovler,   Elisabeth Steiner,   Khanlar Hajiyev,   Giorgio Malinverni,   George Nicolaou, judges, and André Wampach, Deputy Section Registrar , Having deliberated in private on 18 June 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 24325/03) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Yuriy Mikhaylovich Generalov (“the applicant”), on 23 October 2002. 2.     The Russian Government (“the Government”) were represented by Mr   P.   Laptev and Ms V. Milinchuk, former Representatives of the Russian Federation at the European Court of Human Rights. 3.     The applicant alleged, in particular, violations of Articles 3 and 13 of the Convention on account of the conditions in the correctional facility, a violation of Article 3 of the Convention on account of his alleged ill ‑ treatment, a violation of Article 3 of the Convention on account of the alleged failure to diagnose and treat his tuberculosis during his imprisonment and a violation of Article 6 of the Convention as regards the lack of access to a court. 4.     By a decision of 15 November 2007 the Court declared the application partly admissible. 5.     The Government, but not the applicant, filed further written observations (Rule 59 § 1). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     The applicant was born in 1967 and lives in the village of Ferzikovo in the Kaluga Region. A.     General conditions of detention 7.     Between 24 August 2001 and 27 December 2002 the applicant served a sentence for theft in detention facility ZhH-385/5 (hereinafter referred to as “ZhH-385/5” or “the prison”) in the village of Lepley in the Republic of Mordovia. 8.     During his imprisonment the applicant was detained in the following units of the prison: (i)     from 24 August 2001 to March 2002 in unit no. 6; (ii)     from March to August 2002 in a high-security unit; (iii)     from September to December 2002 in unit no. 2. 9.     The parties’ descriptions of conditions in ZhH-385/5 differ on a number of counts. 1.     The applicant’s account 10.     The applicant stated that unit no. 6 measured 336 sq. m, which included a dormitory, a storage room, a dining room and a common room. The unit housed approximately 200 inmates, and since there were not enough sleeping places the applicant had to sleep in the common room on several stools put together. The unit was equipped with only five washbasins, sometimes with no water in them. 11.     Unit no. 2 measured 280 sq. m, which included a dormitory, a storage room, a dining room and a common room. The unit housed approximately 200 inmates, and since there were not enough sleeping places the applicant was again given a sleeping place in the common room, consisting of several stools put together. The unit was equipped with only five washbasins. 12.     The toilet facilities, consisting of five cubicles, were shared by four units (nos. 2, 6, 7 and 9) which housed about 700 inmates in total. 13.     There were no water-heating facilities in the units that inmates could access. 14.     The water in the shower was usually lukewarm; the inmates had to wait for hours for their turn to take a shower. The inmates did not have enough space for their personal belongings and had to dry their washed clothes in their living premises as well, resulting in constant stuffiness and an unpleasant smell. The living premises and canteen were shared with inmates suffering from tuberculosis, and this caused outbreaks of the disease. The authorities did not comply with the prison regulations on food supply and the provision of clothing and toiletries. The inmates had pearl ‑ barley mush three times a day for months, but received no vegetables, fish or meat at all and sometimes no tea for several weeks. The applicant was provided with a mattress, two sheets and a sweater, but the prison authorities failed to provide him with a blanket, towels, underwear, other clothing, shoes or toothpaste. 15.     During his detention the applicant was placed in a disciplinary cell on several occasions. In the disciplinary cell his head was shaved weekly, and when being inspected by the warder he had to stand up facing the wall holding his hands up with the palms turned outwards. 16.     In support of his allegations about conditions in the facility the applicant submitted a number of written statements by other inmates of ZhH-385/5, dated 2-4 November 2002, which had been produced for the domestic proceedings (see subsection 3 below). In so far as relevant these statements may be summarised as follows. 17.     Mr Kh. wrote that, starting in December 2001, he had been detained in unit no. 10. The unit contained 170 inmates of whom some, including Mr   Kh. himself, were infected with tuberculosis and some were not; inmates were allowed about 1.4 sq. m of personal space. Only six washbasins were available for all the inmates of the unit; the kitchen measured 2 sq. m; there was a common room, but it was also turned into a dormitory because of overcrowding. Mr Kh. later repudiated these submissions (see his statement of 2004 among the documents submitted by the Government, subsection 2 below). 18.     Mr I. alleged overcrowding in unit no. 7, claiming that inmates were allowed no more than about 0.5 sq. m of personal space. 19.     Mr N., who was detained in unit no. 10, wrote that the inmates of two units (that is, about 320 people in total) had to share toilet facilities comprising only eight cubicles and that the number of washbasins was insufficient (about 40 inmates per washbasin). He also alleged severe overcrowding, the presence of inmates infected with tuberculosis in the communal units and poor catering. 20.     Mr B. submitted that unit no. 6, which housed about 200 inmates, had only six washbasins. The inmates of units nos. 2, 6, 7 and 9 (about 600   people in total) had to share toilet facilities comprising only seven cubicles, making it difficult to get access to them. He also alleged overcrowding in unit no. 6, claiming that inmates were allowed less than 1   sq. m of personal space, and complained about the extremely poor supplies. 21.     Mr S., who was detained in unit no. 10, referred to extremely poor catering, a failure to supply him with any clothes or shoes and a scarcity of toiletries. He also alleged overcrowding, claiming that inmates were allowed about 1.4 - 1.5 sq. m of personal space and that inmates infected with tuberculosis were accommodated together with the other prisoners. He contended that the unit of over 170 inmates had only seven washbasins and that the toilet facilities shared by two units (about 350 inmates) had only eight cubicles. The shower facilities were also scarce, so that five or six inmates had to use one shower-head at a time. Mr S. later repudiated these submissions (see his statement of 2004 among the documents submitted by the Government, subsection 2 below). 2.     The Government’s account 22.     The Government stated that on admittance to ZhH ‑ 385/5 on 24   August 2001 the applicant had been placed in unit no. 6. The dormitory of the unit measured 336 sq. m. It was intended for 183 detainees but was used by no more than 180 inmates. According to the certificate issued by the prison governor in 2005, it was equipped with six taps, and there were seven more taps in a heated washstand in the yard. Another certificate issued by the prison governor in 2007 stated that the unit was equipped with 14 taps. 23.     Between March and August 2002 the applicant was placed in a high ‑ security unit measuring 98 sq. m, intended for 49 detainees. However, only 21 inmates were held there. 24.     Between September and December 2002 the applicant was held in unit no. 2. The dormitory of the unit measured 280 sq. m. It was intended for 140 detainees but was used by 125 inmates; each detainee was thus allowed 2.24 sq. m. According to the certificate issued by the prison governor in 2005, it was equipped with seven taps, and there were seven more taps in a heated washstand in the yard. Another certificate issued by the prison governor in 2007 stated that the unit was equipped with six taps. 25.     The water was supplied from four artesian wells which produced 120   cubic metres of water per hour. The average consumption of ZhH-385/5 was 63.35 cubic metres per hour. Cold water was always available in the taps except on three occasions, on 25 June, 20 July and 21 October 2002, when it was cut off for several hours for maintenance; during these times drinking water was provided from other sources. 26.     Every unit had facilities for boiling water. Inmates had free access to such facilities. Once a week they took hot showers. The units had toilets in outhouses with sumps. The inmates of units nos. 2, 6 and 7 shared access to 13 toilet cubicles. 27.     Every unit had a room for drying clothes and a dining room equipped with food storage facilities, tables and stools. 28.     The applicant was at all times provided with an individual bed, bedding and clothes in accordance with prison regulations. According to the prison records, on 25 August 2001 the applicant received two sheets, one pillow and one pillowcase, and on 29 August 2001 he received a mattress, a winter coat and a set of clothes. He was also offered a pair of boots but he signed a form refusing them. The meals provided to the inmates included meat, fish, milk, cereals and vegetables. The nutritional value met the required standards. The prison authorities had received no complaints concerning the quality of the catering. 29.     The applicant never shared accommodation with inmates infected with tuberculosis. Detainees who had undergone treatment for tuberculosis were placed separately, in unit no. 10, and they were always catered for separately. 30.     Owing to numerous breaches of prison discipline the applicant was placed in a disciplinary cell a number of times. In particular, he was in the disciplinary cell in December 2001, February 2002 and November 2002. According to the prison regulations, when an official entered a disciplinary cell the detainee had to stand up holding his hands behind his back. Since the applicant had shown a tendency to self-harm he was also required to turn his palms upwards so that the inspector could see that he was not hiding any objects that could be used for causing injuries. All inmates were required to keep their hair cut short. Only those suffering from head lice were advised to shave their hair. However, this was not the applicant’s case and he did not have to have his head shaved. 31.     On 17 November 2004 the Government questioned Mr S., who repudiated his 2002 statement, saying that he had written it at the applicant’s request and that any allegations he had made in it about unsatisfactory conditions of detention were untrue. On the same day they questioned Mr Kh., who stated that he had not written the statement submitted by the applicant dated 2002, claiming that the handwriting and the signature on it were not his. 3.     Domestic proceedings 32.     Following his release on 27 December 2002, the applicant sent a complaint to the Chief Penitentiary Directorate of the Ministry of Justice of the Russian Federation on 17 February 2003 in which he set out, inter alia , the shortcomings in the conditions in ZhH ‑ 385/5. He also addressed similar complaints to the Prosecutor General and to the Speaker of the State Duma, both of which were forwarded to the Penitentiary Directorate. 33.     On 26 March 2003 and on 5 May 2003 the Penitentiary Directorate sent replies to the applicant dismissing his complaints; however, it acknowledged that there had been certain shortcomings with regard to the conditions in ZhH ‑ 385/5. The latter reply stated, in particular, that “the shortcomings in catering, the irregular water supply in the units and the breaches of sanitary regulations were due to [external reasons] related to the excessive number of inmates and have now been overcome”. 34.     On 15 September 2003 the applicant brought proceedings for damages against the administration of ZhH-385/5, alleging poor conditions in the facility, unlawfully imposed disciplinary measures and degrading treatment in the disciplinary cell, including regular head shaving; he also alleged that he had sustained damage to his health and complained about the refusal to deliver one of his parcels in May 2002. The Zubovo-Polyanskiy District Court scheduled a hearing for 11 November 2003. 35.     On 1 November 2003 the applicant asked for the hearing to be postponed on account of a medical emergency. On 12 November 2003 the Zubovo-Polyanskiy District Court stayed the proceedings pending the applicant’s recovery. 36.     On 12 February 2004 the proceedings in the case were stayed again on account of the applicant’s failure to pay the court fees or submit any documents justifying a fee waiver. The applicant was given until 10 March 2004 to pay the fees or request a fee waiver and provide the supporting documents. The applicant did not pursue these proceedings. B.     Alleged failure to diagnose and treat the applicant’s tuberculosis 1.     The applicant’s account 37.     The applicant submitted that during his detention in ZhH-385/5 he had been examined several times by medical specialists who failed to diagnose his tuberculosis. 38.     Immediately after his release, on 4 January 2003, the applicant underwent a medical examination at the local clinic. Among other ailments he was diagnosed with “infiltrative pulmonary tuberculosis in the destructive phase ”. 2.     The Government’s account 39.     The Government submitted that, on 16 August 2001, the applicant had undergone an x-ray of his heart and lungs which showed no anomalies. 40.     On arrival in ZhH-385/5 the applicant underwent a medical examination. His state of health was found to be satisfactory, and the checks for tuberculosis, skin diseases, scabs and lice did not reveal any such conditions. 41.     On 11 September 2001 he underwent another x-ray of his heart and lungs which also showed them to be normal. 42.     On 6 February 2002 another x-ray was made, and the applicant was sent for a further medical examination because of suspected tuberculosis. Further x-rays on 26 February 2002 and clinical tests on 27 February 2002 revealed some pathology in the lungs, but the tuberculosis specialist found that there was no tuberculosis. He recommended monitoring the applicant’s condition with an x-ray every 6 months. 43.     From 26 February 2002 to 12 March 2002 the applicant was placed in a medical institution for prisoners in order to undergo examination for tuberculosis and other diseases. 44.     On 11 March 2002 a further two-projection x-ray revealed changes in the pattern of the lungs and pleural thickening. However, the phlegm test did not confirm tuberculosis. 45.     From 13 March 2002 to 3 April 2002 the applicant was in the medical ward of ZhH-385/5 for treatment of a duodenal ulcer, hepatitis, gastritis and furunculosis. 46.     On 6 June 2002 the applicant was sent for a regular medical check ‑ up which included an x-ray and gave results similar to those of February 2002, showing no clear indications of tuberculosis. On 14 June 2002 the tuberculosis specialist concluded that there was no evidence of tuberculosis. 47.     On 28 September 2002 the phlegm test for tuberculosis proved negative. 48.     In December 2002 the applicant’s next regular check-up was due, but he was released on parole before the scheduled date. C.     Alleged ill-treatment 1.     The applicant’s account 49.     The applicant stated that on 28 December 2001 he had been placed in a disciplinary cell. Handcuffs were put on his hands behind his back and locked to a water pipe about 40 cm above the floor. On the following day he was beaten up by the officers on duty. His request to have his injuries recorded by medical personnel was refused. 50.     On 6 February 2002, when the applicant was detained in the disciplinary unit, a search was conducted in ZhH-385/5. The applicant claimed that a special forces’ squadron (OMON) had been brought in for this purpose. He was severely beaten during the search and allegedly received injuries including bruises and abrasions on his left side. However, immediately after the incident the applicant was refused permission to see a doctor. 51.     The applicant also claims that a foreign body was found in his left side and was extracted later. 52 .     The applicant submitted that on 10 February 2002 he had lodged a complaint with the prosecutor’s office about having been beaten during the search of 6 February 2002. In February-March 2002 other inmates of ZhH ‑ 385/5 wrote statements to the prosecutor’s office in support of the applicant’s complaint; these may be summarised as follows. 53.     Mr L. wrote that on 10 February 2001 he had seen in the shower that the applicant had bruises on his left side, loin and buttock. He also alleged that the applicant had repeatedly asked the prison authorities to have the traces of beating recorded. 54.     Mr A. wrote that during the search of the disciplinary unit on 6   February 2002 he had heard cries and sounds from which he concluded that the applicant was being beaten. He also stated that on 10 February 2001 he had seen in the shower that the applicant had bruises on his left side, loin and buttock. Mr A. later repudiated these submissions (see his statement of 2004 among the documents submitted by the Government, subsection (2) below). 55.     Mr K. wrote that on that day he had seen the applicant in the prison medical ward and noticed traces of beating on his left side and traces of handcuffs. He also alleged that the applicant had repeatedly requested the medical personnel to record the traces of beatings. Mr K. later repudiated these submissions (see his statement of 2004 among the documents submitted by the Government, subsection (b) below). 56 .     Mr G. wrote that on the same day he had been in the disciplinary cell and had seen bruises on the applicant and traces of handcuffs. 57.     The applicant submitted that on 11 November 2002, when he was again in the disciplinary cell, he had felt sick and demanded to be seen by a doctor. The warders ignored him at first, but then came into his cell and beat him up. His request for medical assistance for his injuries was refused and he was left in the cell, handcuffed. 58.     On 30 November 2002, still in the disciplinary cell, the applicant refused to go to work because he had not been provided with winter shoes. The warders threatened him and then beat him up while the head medical officer was present. 2.     The Government’s account 59.     The Government contended that the applicant had not been beaten or otherwise ill-treated in ZhH-385/5. Although he was regularly examined and treated in hospital for various diseases, none of his ailments had been caused by any injuries other than self-inflicted ones. 60.     Owing to numerous breaches of prison discipline the applicant was placed in a disciplinary cell a number of times. 61.     The applicant was handcuffed on two occasions, first on 28   December 2001 and then on 11 November 2002, as described below. 62.     On 28 December 2001 when he was brought before a prison official for a breach of prison discipline, the applicant broke a window and with a splinter of glass made several scratches on his left forearm. He was therefore handcuffed for three hours from 3 p.m. to 6 p.m. After the handcuffs had been removed, he was placed in a disciplinary cell. The governor of ZhH-385/5 investigated the incident and concluded that the injuries were self-inflicted and were not the result of any criminal act. On 4   January 2002 the prosecutor’s office endorsed the decision not to conduct a criminal investigation into the incident. 63.     Between 26 February 2002 and 12 March 2002 the applicant was held in a medical institution for prisoners, and was then transferred, until 3   April 2002, to the medical ward of ZhH-385/5 for further treatment of a duodenal ulcer, hepatitis, gastritis and furunculosis. There are no records of any injuries dating from this period. 64.     On 18 May 2002 the applicant inflicted a slash wound on his left forearm and was provided with medical aid. 65.     On 6 June 2002 the applicant underwent a medical examination in the medical institution for prisoners. He was diagnosed with a hernia and was admitted to hospital. On 5 July 2002 the applicant underwent a surgical operation for the hernia. At the same time a foreign body was found in his left side and was removed. 66.     On 11 November 2002, when the applicant was being held in a disciplinary cell, he made a written statement threatening to injure himself as a protest against the authorities’ refusal to place him in a medical institution for treatment of his “worsening disorders”. To restrain him, the prison warder handcuffed him between 11.30 a.m. and 6 p.m. On 13   November 2002 the governor of ZhH-385/5 investigated the incident and concluded that the handcuffing had been lawful and justified in the circumstances. 67.     On 30 November 2002 the applicant was in the disciplinary cell. No force or special restraint measures were used against him on that day. 68.     On 17 November 2004 the prison authorities questioned 13 inmates of ZhH-385/5 who had been serving their sentences at the same time as the applicant about the acts of ill-treatment alleged by the applicant. Two of the inmates questioned, K. and A., were those on whose earlier statements the applicant had relied. The statements submitted by the Government may be summarised as follows. 69.     Mr S. wrote that he knew the applicant personally and that relations between them had been friendly. The applicant often revolted against the prison regulations and discipline. Mr S. had never heard that the applicant had been beaten in the facility, or that other inmates had been ill-treated in any way. 70.     Mr K. stated that he had not written the statement of 26 February 2002, and that the handwriting and the signature on it were not his. He had never seen any injuries on the applicant, although he had met him in the medical ward when they were held in the same unit for one day. 71.     Mr Kh. stated that he had not written the statement dated 2002 submitted by the applicant, claiming that the handwriting and the signature on it were not his. He had not seen any injuries on the applicant. 72.     Mr A. wrote that he had had friendly relations with the applicant and that the latter had often disobeyed the lawful orders of the prison authorities and breached discipline. The applicant was placed in the disciplinary cell, but even then continued to disobey. In February 2002 Mr A. was detained in a disciplinary cell next door to the applicant, but he had not heard evidence of any violent acts against him. In the shower, he had not seen any traces of beating on the applicant. He repudiated his 2002 statement, pointing out that he had written it at the applicant’s request because of their friendly relations. 73.     Mr Shch. wrote that in February 2002 he had been placed in the disciplinary unit. During his detention there a search was conducted, but no force was applied. He did not hear any cries or other violent sounds during the search, although audibility in the unit was very high. He met other detainees from the disciplinary unit during walks, but nobody mentioned any beatings or other use of force against inmates. He did not know the applicant personally. 74.     According to the Government, similar submissions had been written by Mr Ya.; however, they did not attach a copy of his statement. 75.     Mr Sh. wrote that he knew the applicant but did not have a personal relationship with him. In February 2002 he was detained in a disciplinary cell next door to the applicant, but did not hear him being beaten, though audibility in the disciplinary unit was very high. In the shower, he had not seen any traces of beating on the applicant. He did not hear the applicant complaining about having been beaten. 76.     According to the Government, similar submissions were written by Mr Ab. and Mr V.; however, they did not attach a copy of their statements. 77.     The Government also referred to statements made by Mr T. and Mr   R., who submitted that they did not know the applicant and could not provide any relevant information, and by Mr Kr., who submitted that he knew the applicant but had had no contact with him. No copies of these statements were made available to the Court. 3.     Domestic proceedings 78.     On an unspecified date the applicant complained to the Dubravnyy district prosecutor’s office, alleging that on 28-29 December 2001 he had been ill-treated. On 10 February 2002 he also lodged a complaint alleging that he had been beaten during the search on 6 February 2002. The latter complaint was accompanied by four statements from his fellow inmates, summarised above (see paragraphs 52-56 above). 79.     On 31 May 2002 the applicant complained to the Zubovo ‑ Polyanskiy District Court concerning his alleged ill-treatment and the disciplinary sanctions imposed on him by the authorities of ZhH-385/5. He claimed damages in the amount of 45,000 roubles. He sent an additional complaint to the court on 22 June 2002. The complaints were received by the court on 10   July 2002. 80.     On 16 July 2002 the Zubovo-Polyanskiy District Court declined to accept the applicant’s complaints for consideration, having found that they had been submitted neither through the prison postal service nor through an authorised representative outside the prison, and were therefore in breach of Article 91 of the Penitentiary Code. Its decision was based on Article 129 of the Code of Civil Procedure. The applicant received this decision on 6   August 2002, but did not lodge an appeal against it. Instead he filed numerous petitions with various judicial bodies requesting the quashing of the decision of 16 July 2002 in supervisory review proceedings. None of the petitions was successful. 81.     On 17 July 2002 the prosecutor’s office decided not to conduct a criminal investigation into the alleged ill-treatment of 28-29 December 2001 and 6 February 2002, having found the complaints unsubstantiated. It was noted, in particular, that during his detention in the disciplinary cell between 28   December 2001 and 12 January 2002 the applicant had not applied to the medical unit in order to have any injuries recorded. As regards the alleged ill-treatment of 6 February 2002, the prosecutor’s office questioned three other inmates (A., L. and V.) who had been detained in the same disciplinary unit as the applicant, and two prison officers. They all stated that “nobody from OMON [had] threatened to murder [the applicant]” during the search. The prosecutor’s office therefore concluded that the applicant’s allegations of ill-treatment were not supported by any evidence and that no further investigation was necessary. 82.     On an unspecified date the applicant challenged the decision of the prosecutor’s office of 17 July 2002, claiming that the failure to investigate the events of 6 February 2002 had been unlawful. He supported his complaint by written statements from inmates L., G., K. and A. confirming that several days after the search of 6 February 2002 they had seen bruises on his body and abrasions left by handcuffs on his wrists and that inmate A. had heard the applicant being beaten and crying for help. 83.     On an unspecified date the applicant complained to the prosecutor’s office about the alleged ill-treatment of 30 November 2002. On 13 February 2003 the prosecutor’s office declined to institute criminal proceedings, having found the allegations of ill-treatment unsubstantiated. 84.     On 18 April 2003 the Zubovo-Polyanskiy District Court examined a complaint by the applicant concerning the decision of the prosecutor’s office of 17 July 2002. At the hearing the public prosecutor referred to the investigation conducted into the allegations of ill-treatment which had turned out to be unsubstantiated as there were no witnesses and no record of the applicant’s supposed requests for medical aid or his complaints in this respect. Three officials who had been implicated were questioned in court and denied the allegations. Statements by inmates L. and A. were produced, asserting that they had never written any statements concerning the alleged beating of the applicant and that they had neither seen any bruises on him nor heard any cries from his cell on the relevant date. Neither the applicant nor any other inmates were present in the courtroom. The court dismissed the complaint and found the decision by the prosecutor’s office not to conduct a criminal investigation to be lawful and reasonable. The applicant did not appeal against this judgment. 85.     On an unspecified date the applicant challenged before the court the alleged failure of the prosecutor’s office to register his complaint of ill ‑ treatment on 30 November 2002. On 20 February 2004 the Zubovo ‑ Polyanskiy District Court examined the claim and found that not only had the complaint been registered with the prosecutor’s office, but an official decision had been taken on 13 February 2003 not to conduct a criminal investigation into the allegations. The applicant had been informed of it. Having noted that the applicant had not challenged the merits of the latter decision, the court rejected the claim. No appeal was lodged against this decision. 86.     On 26 August 2004 the applicant brought new proceedings for damages against the authorities of ZhH-385/5. He alleged ill-treatment in the prison and in the disciplinary cell and complained of unlawfully imposed disciplinary measures and damage to his health. 87.     On 31 August 2004 the Zubovo-Polyanskiy District Court stayed the proceedings until 27 October 2004 and ordered that the applicant comply with the formal requirements for lodging a claim by attaching the originals or copies of the documents he referred to in his complaints and paying the full amount of the court fee, or providing reasons justifying a fee waiver. The applicant did not pursue these proceedings. 88.     On 19 November 2004 the applicant lodged a new claim with the Zubovo-Polyanskiy District Court, similar to that of 31 August 2004. On 24   November 2004 the court stayed the proceedings because the applicant had again failed to pay the court fee or file a waiver application, and to attach copies of the relevant documents and the required number of copies of his writ. The applicant was given until 13   December 2004 to rectify the shortcomings. The applicant did not pursue these proceedings. Apparently he lodged a new claim of similar content, failing once again to pay the court fee or request a waiver and to provide the required copies. On 11 January 2005 the Zubovo-Polyanskiy District Court stayed the proceedings and gave the applicant until 10 February 2005 to comply with these requirements. The applicant did not pursue these proceedings either. Likewise, he did not appeal against the stay of any of the above-mentioned proceedings. II.     RELEVANT DOMESTIC LAW A.     Conditions of detention 89.     Article 99 §   1 of the Penitentiary Code of 8 January 1997 provides for a minimum standard of two square metres of personal space for male prisoners in correctional colonies. B.     Criminal-law remedies against ill-treatment 1.     Applicable criminal offences 90.     Abuse of office associated with the use of violence or entailing serious consequences carries a punishment of up to ten years’ imprisonment (Article 286 § 3 of the Criminal Code). 2.     Investigation of criminal offences 91 .     The RSFSR Code of Criminal Procedure (in force until 1 July 2002) established that a criminal investigation could be initiated by an investigator following a complaint by an individual or on the investigative authorities’ own initiative when there were reasons to believe that a crime had been committed (Articles 108 and 125). A prosecutor was responsible for general supervision of the investigation (Articles 210 and 211). He or she could order a specific investigative action, transfer the case from one investigator to another or order an additional investigation. If there were no grounds to initiate a criminal investigation, the prosecutor or investigator issued a reasoned decision to that effect which had to be served on the interested party. The decision was amenable to appeal to a higher prosecutor or to a court of general jurisdiction (Article 113). 92 .     On 29 April 1998 the Constitutional Court of the Russian Federation held that anyone whose legitimate rights and interests had been affected by a decision not to institute criminal proceedings should have the right to appeal against that decision to a court. 93 .     The Code of Criminal Procedure of the Russian Federation (Law no.   174-FZ of 18 December 2001, in force from 1 July 2002), states that a criminal investigation may be initiated by an investigator or prosecutor on a complaint by an individual (Articles 140 and 146). Within three days of receipt of such a complaint, the investigator or prosecutor must carry out a preliminary inquiry and make one of the following decisions: (1) to open criminal proceedings if there are reasons to believe that a crime has been committed; (2) to decline to open criminal proceedings if the inquiry reveals that there are no grounds to initiate a criminal investigation; or ( 3) to refer the complaint to the competent investigative authority. The complainant must be notified of any decision taken. The decision not to open criminal proceedings is amenable to appeal to a higher prosecutor or a court of general jurisdiction (Articles 144, 145 and 148). C.     Access to court 94.     The RSFSR Code of Civil Procedure (in force at the material time) read as follows: Article 129 Receiving civil claims “A single judge shall decide whether to accept a civil claim. The judge shall reject the claim: (1)     if the claim is not eligible for examination by a court; (2)     if the plaintiff has not pursued the out-of-court settlement established by law for this category of cases; (3)     if there exists a final judgment resolving a dispute between the same parties on the same subject matter and on the same grounds, or a judicial decision accepting the plaintiff’s repudiation of the claim or a friendly settlement; (4)     if another case between the same parties on the same subject matter and on the same grounds is pending before a court; (5)     if there has been a decision taken by a [lay arbitration body] within its competence resolving a dispute between the same parties on the same subject matter and on the same grounds; (6)     if the parties have agreed to submit the case to arbitration; (7)     if the court has no jurisdiction over this claim; (8)     if the claim was submitted by a person whose legal capacity has been limited [owing to disability]; (9)     if the claim was submitted on behalf of the interested person by a person without due authority to conduct the case. ...” 95.     Article 91 of the Penitentiary Code and paragraph 12 of the Internal Regulations of Correctional Institutions (Order no. 224 of the Ministry of Justice of 30 July 2001) provide that all incoming and outgoing correspondence of detainees, other than correspondence with courts, prosecutors, penitentiary officials, the Ombudsman and counsel, is subject to censorship by the colony officials. Letters are to be put in mailboxes or given to officials in an unsealed envelope. Paragraph 13 requires detainees to submit all complaints through the colony officials. III.     RELEVANT INTERNATIONAL DOCUMENTS 96.     The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) visited the Russian Federation from 2 to 17 December 2001. The section of its Report to the Russian Government (CPT/Inf (2003) 30) dealing with the conditions of detention in remand establishments and the complaints procedure read as follows: 45. It should be stressed at the outset that the CPT was pleased to note the progress being made on an issue of great concern for the Russian penitentiary system: overcrowding. When the CPT first visited the Russian Federation in November 1998, overcrowding was identified as the most important and urgent challenge facing the prison system. At the beginning of the 2001 visit, the delegation was informed that the remand prison population had decreased by 30,000 since 1 January 2000. An example of that trend was SIZO No 1 in Vladivostok, which had registered a 30% decrease in the remand prison population over a period of three years. ... The CPT welcomes the measures taken in recent years by the Russian authorities to address the problem of overcrowding, including instructions issued by the Prosecutor General’s Office, aimed at a more selective use of the preventive measure of remand in custody. Nevertheless, the information gathered by the Committee’s delegation shows that much remains to be done. In particular, overcrowding is still rampant and regime activities are underdeveloped. In this respect, the CPT reiterates the recommendations made in its previous reports (cf. paragraphs 25 and 30 of the report on the 1998 visit, CPT (99) 26; paragraphs 48 and 50 of the report on the 1999 visit, CPT (2000) 7; paragraph 52 of the report on the 2000 visit, CPT (2001) 2). ... 125.   As during previous visits, many prisoners expressed scepticism about the operation of the complaints procedure. In particular, the view was expressed that it was not possible to complain in a confidential manner to an outside authority. In fact, all complaints, regardless of the addressee, were registered by staff in a special book which also contained references to the nature of the complaint. At Colony No 8, the supervising prosecutor indicated that, during his inspections, he was usually accompanied by senior staff members and prisoners would normally not request to meet him in private ‘because they know that all complaints usually pass through the colony’s administration’. In the light of the above, the CPT reiterates its recommendation that the Russian authorities review the application of complaints procedures, with a view to ensuring that they are operating effectively. If necessary, the existing arrangements should be modified in order to guarantee that prisoners can make complaints to outside bodies on a truly confidential basis.” 97.     The Standard Minimum Rules for the Treatment of Prisoners, adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolution 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977, provide, in particular, as follows: “10. All accommodation provided for the use of prisoners and in particular all sleeping accommodation shall meet all requirements of health, due regard being paid to climatic conditions and particularly to cubic content of air, minimum floor space, lighting, heating and ventilation. 11. In all places where prisoners are required to live or work, (a) The windows shall be large enough to enable the prisoners to read or work by natural light, and shall be so constructed that they can allow the entrance of fresh air whether or not there is artificial ventilation; (b) Artificial light shall be provided sufficient for the prisoners to read or work without injury to eyesight. 12. The sanitary installations shall be adequate to enable every prisoner to comply with the needs of nature when necessary and in a clean and decent manner. 13. Adequate bathing and shower installations shall be provided so that every prisoner may be enabled and required to have a bath or shower, at a temperature suitable to the climate, as frequently as necessary for general hygiene according to season and geographical region, but at least once a week in a temperate climate. 14. All pans of an institution regularly used by prisoners shall be properly maintained and kept scrupulously clean at all times. ... 15. Prisoners shall be required to keep their persons clean, and to this end they shall be provided with water and with such toilet articles as are necessary for health and cleanliness. ... 19. Every prisoner shall, in accordance with local or national standards, be provided with a separate bed, and with separate and sufficient bedding which shall be clean when issued, kept in good order and changed often enough to ensure its cleanliness. 20. (1) Every prisoner shall be provided by the administration at the usual hours with food of nutritional value adequate for health and strength, of wholesome quality and well prepared and served. (2) Drinking water shall be available to every prisoner whenever he needs it. 21. (1) Every prisoner who is not employed in outdoor work shall have at least one hour of suitable exercise in the open air daily if the weather permits. ... 45. (2) The transport of prisoners in conveyances with inadequate ventilation or light, or in any way which would subject them to unnecessary physical hardship, shall be prohibited ...” THE LAW I.     ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE APPLICANT’S CONDITIONS OF DETENTION 98.     The applicant complained under Article 3 of the Convention of his allegedly poor conditions of detention in correctional facility ZhH-385/5. Article 3 of the Convention provides as follows: “No one shall be subjecte